Honesty and Opacity in Charge Bargains

In "Screening versus Plea Bargaining: Exactly What Are We Trading Off?," (forthcoming, Stanford Law Review) Judge Gerard Lynch critiques "The Screening/Bargaining Tradeoff," 55 Stan. L. Rev. 29 (2002), by suggesting that plea bargaining may have virtues for prosecutors and for the entire system, and that aggressive prosecutorial screening unduly diminishes the role of defense counsel, at least in the system we have described. In his view, most plea negotiations "are primarily discussions of the merits of the case, in which defense attorneys point out legal, evidentiary or practical weaknesses of the prosecutor's case, or mitigating circumstances of the offender meriting mercy, and argue based on these considerations that the defendant is entitled to a more lenient disposition than that originally proposed by the prosecutor's charge." In this response, we part ways with Judge Lynch on both the virtues of charge bargaining and the power of defense counsel to add value during those negotiations. Based on our study of case screening practices in New Orleans, we believe that pervasive harm stems from charge bargains due to their special lack of transparency. Charge bargains, even more than sentencing concessions, make it difficult after the fact to sort out good bargains from bad in an accurate or systematic way. We do not believe that active participation by even the best defense counsel can solve this problem. Further, we believe that Lynch's image of defense participation is impossible to align with the experience in most state and local jurisdictions, including New Orleans. It matters a great deal which administrative system of criminal justice one chooses. Prosecutors have every reason to want a system that depends on negotiations for reduced charges. Such a system leaves prosecutors with overwhelming authority and discretion, and gives the public little opportunity to monitor the quality of the end product. When a prosecutor chooses to adopt a system that limits his discretion and that allows greater public scrutiny of his decisionmaking, as the New Orleans District Attorney has done, this is a reason to cheer.